Banned from the Internet?

This item from the CHE is bizarre:

After a college student was found harassing (indeed, threatening) a fellow student via e-mail, a judge ordered him to stay away from her and her friends. But the judge went a step further, telling the student that he is not allowed on the Internet at all...

Where to begin here? First, the easy criticism from practicality -- how will this ban on Internet usage be enforced? With even minimal technical savvy the kid will find his way onto the Internet -- or simply use the Internet via a friend's account/login/etc.

But aside from that issue, on the principle of the matter, this judge's decision is insane. The judge has clearly gone far beyond a just punishment for this individual, and is clearly thereby violating this person's rights. For one thing, email is just one part of the Internet. This would be like someone stalking someone else in the real world, say by driving by their house constantly and yelling nasty things or whatever. This judge would apparently not just put a restaining order on such a person requiring them to stay away from that house -- he would take away the stalkers driver's license altogether. Further, because driving is just one mode of transportation, he'd apparently bar the stalker from flying, taking trains, riding his bike, and so on.

Surely this aspect of the decision will be tossed out on appeal... I hope!

Hey You... Report For Jury Duty!

As if getting the dreaded envelope with "Jury Summons" on the outside wasn't bad enough. How about you are out and about, perhaps shopping at your favorite store, and up comes a police officer who gives you a summons -- for an hour from now, mind you -- and when you protest he says "be there or you'll be in contempt". Yikes! Surely that would only happen in communist, fascist, dictatorial, or any other variety of heavily statist country, right? Why no... it happens here in the USA!

About this time last year I wrote a blog post titled Not a Fan of the Jury System. I won't restate my points and arguments again now, but I encourage you to check it out if you didn't read it last year.

I'd also like to comment on two other things, noted in this article, that the US government is doing to combat the shortage of jurors. One step being taken is:

In New York state, occupational exemptions to jury service have been eliminated, so doctors, lawyers, firefighters, police officers and even judges can no longer get out of jury duty.

As I noted in my post last year, this is a very bad state of affairs. It is bad enough when the average person is taken away from their productive work in whatever job they have. But doctors, firefighters, and police officers are being taken away from potentially saving lives. "Sorry, Mrs. Johnson. I can't perform your husband's heart surgery tomorrow, as I have jury duty." Extreme case, but it serves to illustrate my point. The vast majority of us are not well-suited to be jurors (we aren't well-educated in the law, some folks are too easily swayed by emotion or irrational arguments, etc.) and serving as a juror takes us away from our productive work (or our well-earned time off).

And then consider this one from that same article as well:

In Florida, court officials use a poster of Harrison Ford, star of the movie "Presumed Innocent," to encourage people to report for jury duty. The poster was part of a 2005 public service campaign developed by the ABA. "If a picture of Harrison Ford helps us be a more democratic society, then I'm all for it," said Greg Cowan, a court official in Leon County, Fla.

The problem with this sentiment is that we are not a democratic society. This is a point you hear all the time, but apparently it continues to bear repeating. We are a republic, not a democracy. Other roles in the judicial system are voted for: judges, district attorneys, etc. Why couldn't professional jurors also be voted for? Or why couldn't they be appointed by others in the government who we do vote for (mayors, governors, congressmen, judges, whoever). Professional jurors would be far better suited to the task, and everyone else would be left alone. Those on trial would be better off, and those of us who are law-abiding could continue with our lives un-interrupted. We already do this in some kinds of courts, in some areas of the country -- why not apply this approach to all courts?

Judge: What is a Web Site?

This story almost seems too ridiculous to be true. It begins: "A British judge admitted on Wednesday he was struggling to cope with basic terms like "Web site" in the trial of three men accused of inciting terrorism via the Internet." Read the article for more details...

Kelo's Christmas Card

Check out this brief news item about holiday cards sent by Susette Kelo to city officials and members of New London's development agency. She says she will never forget what they -- and five members of the Supreme Court -- have done to her. And rightly so... they infamously took her home and handed it over to developers who wanted to build commercial buildings on that land (not for public use).

The responses by those who received her holiday cards are disgusting: they consistently say that their were actions were "nothing personal" against her. Nothing personal! We'll just take your home away from you, by force... but its nothing personal. Would that response work for murderers or rapists? Oh, I didn't know the person I assaulted -- I would have attacked anyone who was in my way or crossed my path -- you see, it was "nothing personal, so you have no right to be upset with me." Or more similar, what about the person who steals, say from a 7-11 or a bank? Could they respond with "nothing personal"?!! How pathetic they are... but thanks to Stephen Hicks for the link.

Postmodernism in the Courts

I found William Anderson's essay "Post-Modern Prosecutions" to be very interesting. Too many good passages to quote here, so I just recommend that you go read it (especially if you followed in the news the Duke Lacrosse Team Rape Case several months back). He makes a great case of how post-modernist intellectual tactics are being used in that case, and in many others as well.

Interesting Take on Global Warming Lawsuit

Greg Perkins over at Noodlefood offers up two interesting responses to the recent announcement of a lawsuit over global warming by California against six of the worlds largest car makers. He notes that there are many others that could be sued... why arbitrarily choose the car makers? What about the car owners, the car drivers, the car dealers, gas stations, or the oil companies? He also raises the possibility that this lawsuit might end up being a good thing, by bringing to light the shoddy science and arguments on the Global Warming side, much as the Dover, Pennsylvania "Intelligent Design" case did. We'll see...

Not a Fan of the Jury System

We have all heard of court cases that make us roll our eyes and wonder about justice in America. I won't mention any here, and I'm sure everyone has their own favorite examples. But what I don't hear or read very often is people questioning the jury system as such in this country.

James Dorn of Cato wrote a brief but interesting item today, Abolish Jury "Draft". As the title indicates, he argues that the current compulsory jury system should be abolished because it is a violation of our freedoms. He compares it to the military draft, while admitting it isn't as significant a violation as that was. In its place he wants to "institute an all-volunteer jury" system. He makes some interesting points, many of which I agree with.

I'm well aware of the historical reasons for the current jury system in America (at least the basics). But there are a few things I don't like about it. First, as Dorn argues, there is the very important liberty issue. But even beyond that, I consider it to be horribly inefficient and economically expensive for the country. Many more people are called for duty than are actually serve on a jury. That is a lot of people taken away from their jobs, for one or a few days, on a regular basis. This is especially true for situations where the attornies on each side have reasons for rejecting a lot of the candidates. And even though there are exemptions for various reasons, a great many people who not only would rather be back at their jobs (not to mention vacations) really should be back at their jobs from the perspective of economics. This "total expense" of the jury system would be hard to calculate, but as Dorn notes, it is far more than the daily pittance paid to the jurors who actually serve.

But my main objection is that our system has people -- like me -- with no training in the law -- making important decisions of guilt or innocence. Even if television fiction (Law and Order, etc.) and non-fiction (the O.J. Simpson case, etc.) are not the norm, the very idea that lawyers on both sides can appeal to the emotion of jurors and use other non-objective tactics to sway votes means there is something wrong with the system. Further, weighing evidence should be a science: it takes a lot of epistemological skills, something the average person simply doesn't have, or at least doesn't make use of very often. And the law itself can be a very technical, complicated matter -- seemingly more so all the time. So why do we trust average, untrained citizens to pass judgement on someone's guilt or innocence?

Having voiced my vague objections, I'm not sure that Dorn's idea -- a voluntary jury system -- is the answer either. I've long thought of advocating something more radical than that. I currently favor replacing the compulsory jury system with a system of paid professional jurors. It would be a sort of new legal profession: we have judges, we have lawyers, so too we should have professional jurors. They could be educated, trained, accredited, and so on, just like judges and lawyers are. They would learn aspects of psychology, criminal psychology, sociology, forensics, the law (of course), and other relevant fields.

The benefits of this seem obvious to me. Jurors, with few exceptions, would then be well-educated in the law, in the relevant science that arises in cases, in psychology, and so on. They would be far less-likely to be swayed by emotion, because it would be their job -- their professionally sworn duty -- not to be so swayed. And I think pretty quickly lawyers would radically change their tactics as well, knowing that the jurors were now a very different breed.

Back in September 2005, Steve Forbes wrote a brief column, Junking Judicial Malpractice, making a similar suggestion but in a very delimited (though important) context. Here is the entire thing:

President Bush has proposed putting caps on jury awards in medical malpractice cases. Too often, frivolous lawsuits succeed with juries that are unversed in medicine. And many times awards bear no relation to culpability or the damage allegedly done. A more effective, lasting approach to fairness, however, would be to create medical courts. After all, we have special tribunals for bankruptcy, patents, taxes and other areas. Typical citizens can't be expected
to master the intricacies of medical care.

The recent Vioxx decision is a good example of a case judged on emotion instead of fact. The plaintiffs never demonstrated that the medication killed the patient, but the jury wanted to
punish Merck and "send a message to the big drug companies." The bestseller Blink, by Malcolm Gladwell, discusses how doctors who don't have a good bedside manner get slapped with lawsuits far more frequently than do their brethren with more patient-pleasing personalities.

Medical courts would rely on impartial experts rather than hired guns for the plaintiff bar (or for defendants). These panels would be able to distinguish between genuine malpractice and high-risk, complicated medical procedures.

Senators Mike Enzi (R-Wyo.) and Max Baucus (D-Mont.) and Representative Mac Thornberry (R-Tex.) have introduced legislation that would allow states to experiment with medical courts. Victims of medical malpractice would receive justice--as would innocent doctors and hospitals.

I totally agree with Mr. Forbes on this.

But I'd go even further. Not just medical courts, but all courts. Why not have professional jurors, who are educated (fairly well) in the law, in the relevant sciences, who understand what is and is not evidence and how to weigh evidence, who are far less likely to be swayed by emotion, or their racial/religious/ethnic views and biases, and so on, be the ones deciding guilt and innocence? Justice is too important to leave it to anyone else.

This is not a position I am confident on, just something I have been thinking about over the years. I'd be interested in readers' thoughts on it, pro and con.

Kelo's Recent Birthday

Because of some recent news items, and because it is the one-year anniversary of the Supreme Courts already infamous Kelo decision, I have been reading a lot of items on Eminent Domain lately. Here is a run-down of several of the more worthwhile ones.

On June 8th Tim Sandefur wrote a brief piece for Cato, The Pain of Eminent Domain. A few highlights:

• Of the 16 states that have acted since Kelo was decided, only six -- South Dakota, Georgia, Indiana, Pennsylvania, Minnesota and Florida -- have imposed meaningful restraints on government power. Other states have either done nothing or have enacted laws so riddled with loopholes that they allow government to seize whatever property they consider "blighted."
• For example, in Alabama where Gov. Bob Riley declared his state the leader of the post-Kelo "property rights revolt", the new law there prohibits government from taking property merely for economic development, but that restriction does not apply to property that is declared 'blighted'. Blight is defined as "buildings ... which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community." Under such vague standards, virtually any neighborhood can be declared a blight, and any home or business located there can be seized and given to developers.
• Government routinely causes "blight." By subsidizing idleness, failing to protect property rights and stifling job creation through burdensome regulations and taxation, government often chokes economic growth. And its anti-growth policies sometimes make it prohibitively expensive to construct new housing anywhere but on land already owned by someone else. There's something amiss when developers find it easier to cannibalize existing owners than to build new homes or shops on vacant land.

Also on June 8th, John Charles wrote a short piece for Capitalism Magazine, Eminent Domain is Never the Solution. In it he notes a current case in Portland, Oregon, where Portland City Commissioner Randy Leonard wants the government to use its power of eminent domain to take property from one party and give it to another so they can build an upscale supermarket. He then notes an alternative to Eminent Domain:

In fact, there are other ways to improve neighborhoods and increase property values. Throughout the 20th century, St. Louis revitalized some of its worst neighborhoods by transferring control of streets to local homeowners. In 1974 the residents of one deteriorating neighborhood formed a residential association and assumed management responsibility for the primary boulevard. They raised $40,000 to erect a gate that partially closed the street, giving owners more control. A block watch was started, crime decreased, and the association borrowed funds to improve the street and housing. The result was that property values doubled.

Then on June 23, President Bush signed an Executive Order entitled "Protecting the Property Rights of the American People." That is a good thing, I guess. It starts by saying "It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

That sounds a little vague to me still -- "for the purpose of benefiting the general public" could be easily stretched to include all kinds of things. Is it a "benefit of the general public" that local government have more tax revenue to spend on public projects? Or to allow for a lowering of everyone's propery tax rates? Well, everyone who still has their property that is.

And in legal matters I always pay close attention when I hear the word "merely" inserted. So if some alternate use would be mostly for the benefit of some other private individual, corporation, developers, or whoever, but also has some minor "public use" benefit, then this EO seems to just nod and smile and say A-OK to it.

Later in the EO there are nine exclusions listed, many of which are not surprising -- they allow for the traditional, pre-Kelo uses of Eminent Domain for roads, parks, government buildings, and so on (which I am also against, but that is an argument for a different day). But the last one is again quite vague: "meeting military, law enforcement, public safety, public transportation, or public health emergencies."

Again, whenever I see the word "emergency" used in politics, I pay close attention. It wouldn't take too many dishonest syllogisms for a politician to argue that the government should transfer your property to somone else, so that they can build something else on it, so that revenues from property taxes will go up, so that they can then spend on... public health "emergencies". Afterall, they can't fight public health problems without tax revenue. Or they could make the case that the lack of a good grocery store in a particular neighborhood constitutes a public health emergency for the people in that area... hence, you're gonna need to move on friend.

And ditto for "public safety". No doubt some amount of tortured logic could be used to argue that public safety would be improved by taking Joe's home and plot and giving it Jim's corporation to create jobs, so that people in the neighborhood won't be tempted to resort to crime... thereby improving public safety.

I'm not claiming that Mr. Bush purposely kept certain phrases vague, or that he hopes words like "public health" or "public safety" would be used in that way. Quite the opposite, I assume. But the words are vague nonetheless.

On top of all of that, if he really wanted to make a strong stand on the Kelo decision, he should have done more. The Federal government isn't the major player in such Eminent Domain cases anyway, so passing this EO won't have a huge effect (or so I've read). What could have a bigger impact would be to mandate, or push for legislation that mandates, that no federal funds can be given for such projects initiated by local or state governments.

Here are others who make essentially the same criticisms as the above: David Boaz of Cato here, and then here, Ilya Somin here, and Tim Sandefur here.

And if you aren't yet as skeptical of the value of Bush's EO as I am, read this post from Radley Balko, who notes: "Back in 2004, when Kelo was pending before the Supreme Court, the Bush administration not only refused to file an amicus brief on behalf of the property owners, but was actually on the verge of filing a brief on behalf of the land-seizing local governments."

Ouch! He then goes on to provide an amazing quote from Clint Bolick, an attorney for the Institute for Justice who represented Kelo in the big case. Good stuff!

National Assoc. of Scholars blogging on Nifong

I just read the recent NAS (National Association of Scholars) blog entry by K.C. Johnson, a History professor from Brooklyn College CUNY, on the subject of prosecutor Mike Nifong. It is an outstanding review of key aspects of the Duke Lacrosse Team / Rape case, with a focus on the shameful actions of prosecutor Nifong. This is such an excellent writeup, I can't just select a few quotes to include here.